Lambert v. Paine. settled, that the words all his estate,' will pass everything a man has ; but, if the word 'all' is coupled with the word 'personal,' or a local description, there the gift will pass only personalty, or the specific estate particularly described." And in the case of Loveacres v. Blight, Cowp. 355, Lord MANSFIELD said, “in general, wherever there are words and expressions, either general or particular, or clauses, in a will, which the court can lay hold of, to enlarge the estate of a devisee, they will do so, to effectuate the intention. But if the intention of the testator is doubtful, the rule of law must take place; so, if the court cannot find words in the will, sufficient to carry a fee, though they themselves should be satisfied, beyond the possibility of a doubt, as to what the intention of the party was, they must adhere to the rule of law. Now, though the introduction of a will, declaring that a man means to make a disposition of all his worldly estate, is a strong circumstance, connected with other words, to explain the testator's intention of enlarging a particular estate, or of passing a fee, where he has used no words of limitation, it will not do alone. And all the cases cited in the argument, to show that the introductory words in this case would alone be sufficient, fall short of the mark; because they contained other words, clearly manifesting the intention of the testator to pass a fee." The case of Right v. Sidebotham, Doug. 759, is also very strong. There, the introductory clause testified the intention of the testator to dispose of all his worldly goods and estates, and also a disinheriting legacy to the heir. The devise, then in question, was coupled by the word "and" with another *103] devise to *the same devisee, her heirs and assigns, yet it was held not sufficient to carry the fee. Lord MANSFIELD says, "the rule of law is established and certain, that express words of limitation, or words tantamount, are necessary to pass an estate of inheritance. All my estate, or all my interest, will do; but all my lands lying in such' a place, is not sufficient. Such words are considered as merely descriptive of the local situation, and only carry an estate for life.” The same principle is laid down in Gilbert on Devises 24. Thus, we find that the intention of the testator must be sought by fixed rules, and when found, it must not only be sufficiently proved, to satisfy the conscience of the court, but must be coupled with apt and sufficient words to pass a fee. See the case of Frogmorton v. Wright, 3 Wils. 418, which is a strong case for the plaintiff. So is also the case of Chester v. Painter, 2 P. Wms. 335. In the case of Fletcher v. Smiton, 2 T. R. 656, the words were, "all my estates," and the decision was upon the ground of an intention clearly appearing to dispose of his whole interest. There is nothing in the present case, to show an intention of conveying a fee, unless it be the words "all the estate called Marrowbone, in the county of Henry, containing 2585 acres of land." The testator does not, in the beginning of his will, as in most of the cases cited, declare an intention of disposing of all his estate and interest. There is a difference between the terms "all the estate" and "all my estate." The latter is certainly a more evident allusion to the degree of interest than the former. The expressions "all the estate called Marrowbone," are clearly words of locality, and not of interest. What idea would a lawyer have of an estate called Marrowbone, containing 2585 acres? Could he ascertain whether it was an estate for Lambert v. Paine. years, for life, or in fee? Besides, the expression is coupled with two others which are most clearly descriptive of the thing, and not of the degree of interest. "Likewise one other tract of land, called Horse-pasture; also one other tract, called the Poison-field." Here, by the word "likewise," is implied that the testator meant to devise the same degree of interest in each of the tracts; and by the word "other," it is evident, that he intended the former description as a description of a tract of land *as to locality only, and not of his [*104 degree of interest in it. Having, in the first part of the sentence, used an equivocal word, and having, in the subsequent clause of the sentence, used synonymously a word which is certain in its meaning, and clearly descriptive of the thing, and not of the interest, it is fair to conclude, that the equivocal meaning of the former is explained and rendered certain by the latter; and that he meant no more by the word "estate," than by the expression "tract of land." It is a rule, that where words are used synonymously, the word most frequently used shall govern the sense. Here, the term "tract of land" is twice used as synonymous to "estate;" the former, therefore, ought to control the sense of the latter. It is true, that "all my estate" has sometimes carried the fee; but to induce a departure from the general rule, the intention must be clear to pass a fee. The word "all" is coupled with a local description; it relates to the number of acres, and not to the degree of the testator's interest in the land. The word "estate," as used in Virginia, is generally understood to mean a description of the property or thing, and not of the interest; and this court will respect the provincial meaning, to come at the true intention of the testator. It is not probable, and therefore, is not to be presumed, that he would give his estate to a stranger, and disinherit his heir, who had given him this very estate; and it is to be observed, too, that he does not, in his last will, even mention his brother John, to whom, by the first will, he had given all his estate. 2. The second point is, that John Lambert, heir-at-law of George Harmer, is not an alien as to the citizens of this country, and is capable of taking the reversion by descent. If he is incapable of holding lands in this country, it must be, because he is an alien born. Is he such, under the legal acceptance of the word alien? A definition of an alien is thus given in Calvin's Case, 7 Co. 16 a: "An alien is a subject that is born out of the ligeance of the king, and under the ligeance of another." Wood's Inst. 23; 1 Inst. 198b; 1 Woodd. 386. John Lambert, the lessor of the plaintiff, was born in England, in *the year 1750, under the allegiance of the king of Great Britain. At his birth, he had inheritable qualities, of which he can be [*105 deprived by one mode only, and that is the commission of a crime sufficient to work corruption of blood. 1 Bl. Com. 371. This is not pretended. Lambert was born within the ligeance of the king, the then common sovereign of this country and England; and therefore, is not an alien born. Those born under common allegiance may acquire and hold lands; and in time of war, they may join the one, but must render service to the other, for the land. Bracton, lib. 5, c. 24, fol. 427b; 1 Hale's P. C. 68; Calvin's Case, 7 Co. 27 b. The words of Bracton are: "Est etiam et alia exceptio quæ tenenti com. petit ex persona petentis propter defectionem nationis, qace ditatoria est, et non perimit actionem, ut si quis alienigena qui [non] fuerit ad fidem regis Angliæ, tali non respondeatur, saltem donec terræ fuerint communes, nec Lambert v. Paine. etiam sive rex ei concesserit placitari, quia sicut Anglicus non auditur in placitando aliquem de terris et tenementis in Francia, ita nec debet Francigena, et alienigena, qui fuerit ad fidem regis Franciæ, audiri placitando in Anglia. Sed tamen sunt aliqui Francigena in Francia, qui sunt ad fidem utriusque, et semper fuerunt ante Normanniam deperditam, et post, et qui placitant hic et ibi, ea ratione qua sunt ad fidem utriusque, sicut fuit W. comes Marreschallus et manens in Anglia, et M. de Feynes manens in Francia, et alii plures; et ita tamen si contingat guerram moveri inter reges, remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiam, et faciat servitium debitum ei cum quo non steterit in persona. See also Calvin's Case, 7 Co. 25 a, b. Wood's Inst. 23. A man born in the English plantations, is a subject. He that is born in the mother country must, à fortiori, be a subject, and capable of all the rights of a subject in the colonies. One of these rights is that of acquiring property. "All persons may convey, as well as purchase, except men attainted of treason," &c., "aliens born," &c. Wood's Inst. 233; 1 Inst. 42 b. But it has been proved, that the lessor of the plaintiff is not an alien born; he, therefore, may purchase or take. If he once had an inheritable quality, or a capacity to take, and has not forfeited it by any crime, it follows, that he has it yet. The separation of the colonies from England, could *106] not, in law or *reason, deprive him of this right. Calvin's Case, 7 Co. 27 a, b. Calvin's Case was shortly this: Calvin was born in Scotland, after the crowns of England and Scotland were united on the head of James I. The question was, whether he could maintain an assise of novel disseisin of lands in England. The plea was, "that he was an alien, born at Edinburgh, within the kingdom of Scotland, and within the ligeance of the king of Scotland, and out of the ligeance of the king of England." One of the objections on the part of the defendants was, that if post-nati were, by law, legitimated in England, great inconvenience and confusion would follow, if the king's issue should fail, whereby those kingdoms might again be divided. But to this, it was answered by the judges, that "it is less than a dream of a shadow, or a shadow of a dream: for it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth: For as the ante-nati remain aliens as to the crown of England, because they were born when there were several kings of the several kingdoms, and the uniting of the kingdoms, by descent subsequent, cannot make him a subject to that crown to which he was an alien at the time of his birth, so albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert !) should, by descent, be divided, and governed by several kings; yet it was resolved, that all those that were born under one natural obedience, while the realms were united under one sovereign, should remain natural-born subjects, and no aliens; for that naturalization, due and vested by birthright, cannot, by any separation of the crowns afterwards, be taken away; nor he that was, by judgment of law, a natural subject, at the time of his birth, become an alien, by such a matter ex post facto. And in that case, upon such an accident, our post-natus may be ad fidem utriusque regis, as Bracton saith, in the afore-mentioned place, fol. 427." The present case is stronger than Calvin's. There, the question was, whether he had gained a right; but here, it is, whether he has lost one. The Lambert v. Paine. same rule prevailed when the Saxon heptarchy became united under the King of the West Saxons. Calvin's Case, 7 Co. 23 b. And also with regard to the possessions held by the kings of England in France, at various times, such as the Dukedom of Acquitain, and the Earldoms of Poitiers, Normandy and Anjou. So, with regard to the islands of Jersey, Guernsey, *Man, [*107 Ireland, &c. Calvin's Case, 7 Co. 19, &c. ; 1 Hale's P. C. 68, 69. Suppose, a division of these states, it would follow, from the doctrine contended for by the opposite counsel, that people born in the same country, and under one common allegiance, would be aliens to each other. The Kings of England themselves did homage to the Kings of France for provinces which they held, such as Normandy, Guienne, Brittany, &c. This was also the case with many of their subjects; as in the case of the Duke of Richmond, Duke D'Aubigny, &c. Hale's P. C. 68; Calvin's Case, 7 Co. 27 b. In this country, the personal services are dispensed with, but the land pays the common tax or duty. Alienage is incident to birth only. Doe ex dem. Duroure v. Jones, 4 T. R. 308. It is not just or reasonable, that a man should be punished, without committing a crime, or for an act committed by a superior power which he could not control. Suppose, a secession of one of these states; would it be just, that the citizens of the other states, holding property in that state, should forfeit it, or lose their rights? The reasons of policy for prohibiting aliens from holding lands are stated in Calvin's Case, 7 Co. 18 b, to be three: 1. The secrets of the realm might thereby be discovered; 2. The revenues of the realm should be taken and enjoyed by strangers born; 3. It should tend to the destruction of the realm. But none of these apply to the present case. Lambert lives out of the realm, and therefore, cannot betray its secrets. The land will continue to pay the taxes, which, being the sinews of war, will preserve the realm. Besides, the case applying only to the ante-nati, is limited in extent, and its operation will be constantly diminishing by failure of heirs, by alienations, by naturalization, &c. The English, who understand the principles of the common law at least as well as we do, have allowed our citizens to inherit in similar cases. The cases of the Chichester estate, and an estate recovered by Mr. Boyd, and the Earl of Cassel's estate, are examples. A liberal policy should dictate a reciprocation of the same principle. *3. The third point, viz., that the will of 12th September 1786, is [*108 only a partial, and not a total, revocation of the will of 25th June 1782; and that this will passes and disposes of the reversionary interest of the testator's estate, according to the legal import of that will, was admitted by the opposite counsel, in case the second will devised a life-estate only. 4. The fourth point, that by virtue of the Virginia statute transferring trusts into possession, the devise of 1782 transferred the legal estate to John Lambert, was also admitted, if he is not to be considered as an alien. 5. The fifth point is, that John Lambert, if an alien, is yet capable of taking by devise, and is protected by the treaty of 1794, between the United States and Great Britain. By the 9th article of the treaty, "it is agreed, that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his majesty, shall continue to hold them, according to the nature and tenure of their respective estates and titles therein; and may grant, sell or devise the 3 CRANCH-5 65 Lambert v. Paine. same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as may respect the said lands, and the legal remedies incident thereto, be regarded as aliens." The only doubt which can be raised upon this article arises from the word "hold." But treaties ought to be liberally expounded, so as to meet the full intention of the contracting parties. There can be no doubt, but the intention was to secure, not only actual possession, but rights which would have vested but for the alienage of the parties. This is apparent, from the provision made for legal remedies, which would be wholly useless, if the former expressions were meant to comprehend only lands in actual possession. If, therefore, Lambert is to be considered as an alien, yet the treaty destroys that bar to his recovery. *109] *6. The sixth point is, that although Lambert should be considered as an alien, and is not protected by the treaty, yet he is capable of taking by devise, and of holding the land, until office found for the commonwealth. He certainly has a good right against all the world, except the sovereign. In England, land purchased by an alien does not vest in the king, until office found. Co. Litt. 2 b, Hargrave's note 3; Page's Case, 5 Co. 52 b; 1 Jones 78, 79; Englefield's Case, Moore 325; 2 Bl. Com. 293. If he had been tenant-in-tail, he might have barred the remainder. Goldsb. 102; 4 Leon. 84. An alien may take by devise, Powell on Devises 316, 317, 318; Knight v. Duplessis, 2 Ves. 362, and may hold until office found. "For," says Powell, "when an alien takes by will, the estate, on the will's being consummate, vests in him, and he is in, to all intents and purposes, as any other devisee would have been, until something further be done to take the estate devised out of him again; for as long as the alien lives, the inheritance is not vested in the king, nor shall he have the land, until office found; but if he die before office, the law casts the freehold and inheritance upon the king, for want of heirs, an alien having none. So that the title of the crown is collateral to the title by the devise, has no retrospect to the time of its being consummate, nor does it affect the land in the hands of the devisee, until another thing is done to entitle the king, not under the devise, but by right of his prerogative, viz., office found; the tenant being an alien, and consequently, though of capacity to take lands in his own right, yet not of capacity to hold them." Key, contrà, contended, 1st. That George Harmer, by the will of 1786, devised a fee to Gilmer. 2d. That if he did not, yet the lessor of the plaintiff cannot recover. *110] tator. 1. The word "estate," in the devising clause of a will, where it refers to land, denotes and carries the testator's interest in the land. And there is no difference in construction *of law, whether the words are "all my estate," or "all the estate." Both carry the whole interest of the tesIn the present case, there are no words of locality that operate as description, and prevent the fee from passing. It is admitted, that the word estate, where it is coupled with personalty, shall be restrained, and will not carry the fee of lands; upon the principle noscitur a sociis. This case is not within this distinction, because the word estate refers wholly to the land, and the whole personal estate is disposed of by a subsequent, independent clause. Consequently, no cases can apply but where the expressions |